PRISM: A Legal Practitioner’s Perspective

Posted by ediscoverycat on June 12, 2013 · 1 Comment 

PRISM & The NSA’s Leaky Faucet

If you have been to non-eDiscovery related blogs, cnn.com or even just reading a paper or watching the news the word PRISM and bigger than wikileaks has been thrown around a lot in the last few days.  What does this mean in terms of our industry?  Well if the initial $20 billion class action filed on June 11th is any indication, 2013 may have an uptick in business.  The Lawsuit targets those who have reportedly been involved in giving the government real-time access to their databases. This includes: Sprint, T-Mobile, AT&T, Facebook, Google, Microsoft, Skype, YouTube, Apple, PalTalk, AOL, and Yahoo.

What is The Hype About?

A Senior Analyst from Booze Allen recently leaked top-secret documents on an NSA program called PRISM to several media outlets.  These documents show an ongoing program of information collection and data mining across 7 popular internet search engines, social media sites and websites.  The program focused on metadata, however some of the metadata requested from telecom providers was specific enough to raise 4th Amendment questions for the ACLU and others. (As their recent filings clearly lay out: American Civil Liberties Union et al., v. National Security Agency / Central et al., 493 F.3d 644 (6th Cir. 2007),Larry Klayman’s $20 Billion Suit and   poteneial EU suits.

PPT from NSA PRISM LEAK: Data straight off servers

What is Prism?

PRISM involves the collection of digital photos, stored data, file transfers, e-mail, chat services, videos, and video conferencing from nine Internet companies, according to a “top secret” document posted on the Washington Post website on Thursday.  PRISM is a system the NSA uses to gain access to the private communications of users of nine popular Internet services. We know that access is governed by Section 702 of the Foreign Intelligence Surveillance Act, which was enacted in 2008  according to the Washington Post.  This system pulls information directly off of the servers of the participating companies and has been tacitly confirmed by the Director of National Intelligence James Clapper.  The 7 companies involved have not confirmed participation or the scope of their participation in providing personal information to the government.

Why Does This Matter?

Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube and Apple have all been implicated in this far reaching data collection and mining program.  The leaked documents show an ever increasing scope for PRISM with highlights that include the number of obtained communications increasing in 2012 by 248% for Skype – leading the notes to remark there was “exponential growth in Skype reporting; looks like the word is getting out about our capability against Skype”. There was also a 131% increase in requests for Facebook data, and 63% for Google.  In total, more than 77,000 intelligence reports have cited the PRISM program.  Holy Big Brother Batman.

Despite the Government not denying PRISM and the hard documentation, several of the implicated entities are completely denying knowledge or involvement, which is hard to believe given that the program gives the government direct access to their servers.

 Now What??

Once you get past the dramatics what this comes down to is a question of potential  violation of the 4^th amendment, potential class action fall out and internal and government investigations to sniff out any other potentially leaky employees.  The ACLU has already filed cases directly against the NSA and Verizon and the first Class Action was filed on June 11th.

Generally, the government has successfully had cases like this dismissed because litigation would reveal state secrets or that plaintiffs could not prove they were personally affected and thus lacked standing. Here, since  the ACLU is a Verizon customer, and it recently was leaked that Verizon received a secret court order for all domestic calling records, there is standing and the government has somewhat declassified the records.  If there is initial success, the scope of how far the legal impact spreads may be quite large.

It will be interesting to see how everything plays out, one thing we can count on is that there will be a lot of data (meta or otherwise) to review!

For more information about Advanced Discovery’s Response to PRISM check out our recent press release on the formation of a PRISM Rapid Response Team   (I am Co-Chair).

Cat Casey

Catherine A. Casey | Vice President of Managed Review, Co-Chair of PRISM Rapid Response Team

ADVANCED DISCOVERY
C: 301.404.3954

1900 L. St N.W.| Washington | D.C. 20036

Filed under 26(f), Big Data, class action, Data Privacy, eDiscovery, government investigation, Internal investigation, New, NSA, NSA consumer class action, Practice Area, PRISM, white collar · Tagged with 4th amendment, FISA, national security agency, NSA, NSA ACLU, NSA consumer class action, Prism, privacy, security, White collar